The American Civil Liberties Union and the Public Patent Foundation threw down a gauntlet yesterday that could change the shape of the biotechnology industry. Their lawsuit challenges the constitutionality of gene patents, arguing that granting patent protection to genetic sequences is a violation of the First Amendment.

The suit names the U.S. Patent and Trademark Office and the two holders of patents on the breast cancer genes known as BRCA1 and BRCA2, Myriad Genetics and the University of Utah Research Foundation. The 20 plaintiffs include scientific organizations and women’s health groups (Breast Cancer Action and Our Bodies Ourselves), as well as individual researchers, genetic counselors, and cancer patients.

The legal challenge and the media surrounding it are bound to cause a stir, and that’s all to the good. How many people know that the U.S. has granted thousands of patents on human genes – that about 20 percent of our genes have already been patented? How many know that a company or university that holds a gene patent can prevent anyone from studying, testing or even looking at that gene?